• Slide 1

    Article Details

    Find, consult and hire the best Lawyers in India

THE RIGHT TO PRIVACY-WHY TODAY WILL BE DECISIVE

2017-07-19 12:43:07
THE RIGHT TO PRIVACY-WHY TODAY WILL BE DECISIVE

The Right to Privacy in India

The Constitution of India does not contain any express provision for protecting privacy, but on several occasions the question has been addressed under the Right to Life[ii], and the possibility of including the right in the purview of a broadened concept of Right to Life. The Supreme Court considered the question in the case of M P Sharma v Satish Chandra[iii], where an 8-Judge bench decided that “….search and seizure is an overriding power of the State for the protection of social security… Constitution makers have thought fit  not  to  subject  such  regulation to constitutional limitations  by recognition  of the  fundamental  right  to privacy.. there is no justification  for  importing  into  it,  a  totally different  fundamental right by some  process of  strained construction..”. The decision did not allow Privacy to be incorporated into the available Fundamental Rights, and upheld the State’s power to monitor social security.

Further, in Kharak Singh v State of UP[iv] the Court ruled that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III”.

In Rajagopal v State of Tamil Nadu[v], the Supreme Court held that “…..Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21.” The Court also went ahead to state that “…any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing”.

The Aadhaar Issue with Privacy

Justice K S Puttaswamy (Retd.) v Union of India[vi] bears great relevance in this regard, as the Aadhaar Scheme was challenged in several petitions claiming that collection of such biometric data is violative of the “right to privacy. In the said case, it was pleaded by Attorney General and the other Senior counsel that “…to settle the legal position, this batch of matters is required to be heard by a larger Bench of this Court as these matters throw up for debate important questions..”

The Court identified two questions that need to be considered in arriving at a decision on the matter:

(i)                  Whether there is any “right to privacy” guaranteed under our Constitution.

(ii)                If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy.

 

The Court in the case declared that “…the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. …. pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”

Subsequent to the havoc caused by the outpour of challenges against Aadhaar, Chief Justice Mr. K.S. Khehar has formed a Bench of Nine Judges who will bring a final settlement on the question whether Right to Privacy is a Fundamental right or not, and if so, then the Constitutionality of collecting and storing biometric and social data by way of Aadhaar will be examined.

 



INDIAN KANOON

[i] 270th Report of the Law Commission of India

[ii] Art.21, Constitution of India

[iii] 1954 AIR 300

[iv] 1964 SCR (1) 332

[v] 1995 AIR 264

[vi] WRIT PETITION (CIVIL) NO.494 OF 2012

 

LEGAL REMEDIES FOR PROPERTY DISPUTES

LEGAL REMEDIES FOR PROPERTY DISPUTES

13 February 2018   03 09 PM
Read More
Is builder reputation important for investing in real estate?

Is builder reputation important for investing in real estate?

30 January 2018   05 26 PM
Read More
REMEDIES FOR DELAYED POSSESSION UNDER RERA - Legal Resolved

REMEDIES FOR DELAYED POSSESSION UNDER RERA - Legal Resolved

27 January 2018   11 48 AM
Read More
What is the best way to handle cheating partner?

What is the best way to handle cheating partner?

25 January 2018   12 09 PM
Read More
HOW A LAWYER CAN HELP TO RESOLVE BUILDER DISPUTES?

HOW A LAWYER CAN HELP TO RESOLVE BUILDER DISPUTES?

23 January 2018   05 07 PM
Read More
BUILDER DISPUTE- NCDRC OR RERA?

BUILDER DISPUTE- NCDRC OR RERA?

16 January 2018   01 41 PM
Read More
Importance of filing a Legal Notice in India - Legal Resolved

Importance of filing a Legal Notice in India - Legal Resolved

09 January 2018   05 15 PM
Read More